Medical Marijuana AG Opinion Released

PHOENIX (Monday, August 6, 2012) -- Arizona Attorney General Tom Horne issued the following statement in connection with an Opinion being issued today regarding the Arizona Medical Marijuana Act (AMMA) stating the law is pre-empted in part:

“I have received formal requests from State Representative John Kavanagh and Yavapai County Attorney Sheila Polk, as to whether the Arizona medical marijuana initiative is preempted by federal law. This past Friday, August 3rd, I received the same request from 13 of Arizona’s 15 county attorneys, including county attorneys of both political parties. The request from the 13 county attorneys stated: ‘your immediate action is requested in light of the pending licensing of dispensaries beginning on August 7th.’

The 13 county attorneys have clearly communicated their view that the AMMA is preempted by federal law.

I have taken seriously the request of the 13 county attorneys that immediate action is needed, and the Opinion is attached. The Opinion was prepared by professional attorneys entirely on the basis of legal precedent, without regard to policy considerations as to medical marijuana as an issue, and without regard to my views. This is a purely legal analysis, as is the duty of this office.

Two recent cases, one from California, and one from Oregon, hold that the state cannot ‘authorize’ actions that are forbidden under federal law. A state can, however, decriminalize marijuana under its own laws. These cases compel the Opinion being issued today.

The AMMA ‘authorizes’ dispensaries, and the growing of marijuana. Under the California and Oregon court decisions, those provisions would be preempted by federal law. However, the provisions of the AMMA that relate to patient and caregiver identification cards would not be preempted because they merely identify those individuals who are exempt from prosecution under state law for the possession or use of marijuana for medical purposes. The use of the cards for that purpose would not be preempted.

This is an Attorney General’s opinion, not a court order, and a court may or may not agree with this opinion. We expect that there will be a motion for accelerated resolution of this issue in a pending court case.

Accordingly, I have advised the Department of Health Services that the law does not prevent them from proceeding with the planned lottery on Tuesday, August 7, and the issuance of registration certificates. The receipt of a registration certificate does not give a certificate holder permission to open or operate a dispensary. Certificate holders must subsequently apply for approval to operate after having completed a number of additional requirements. Dispensary certificate holders are advised that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court, which I expect will be resolved in an accelerated manner.